[2011] KEHC 2856 (KLR)

[2011] KEHC 2856 (KLR)

The court found that although the applicant claimed no appeal had been instituted in Tanzania, the respondent had filed a Notice of Appeal and obtained an interim stay of execution from the Tanzanian Court of Appeal. The court held that the existence of a Notice of Appeal and an operative stay order meant that the...

Source-derived case information.

Citation
[2011] KEHC 2856 (KLR)
Parties
Applicant: Herman Phillip Steyn; Respondent: Charles Thys
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
12 April 2011
Case Number
Civil Case 723 of 2006
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Originating Summons for Registration of Foreign Judgment
Outcome
application dismissed with costs to the respondent
Judges
DK Musinga
Legal Topics
Foreign Judgment Registration, Reciprocal Enforcement, Stay of Execution, Pending Appeal, Cross Border Enforcement
Source Language
english
Civil Procedure Commercial and Corporate Foreign Judgment Registration Reciprocal Enforcement Stay of Execution Pending Appeal Cross Border Enforcement

Source-derived case record

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Parties

Herman Phillip Steyn

Applicant

Charles Thys

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Ex Parte Originating Summons for Registration of Foreign Judgment

Legal Issues

  1. 1 Whether the judgment of the High Court of Tanzania at Arusha in Civil Case No. 14 of 1999 can be registered and enforced in Kenya under the Foreign Judgments (Reciprocal Enforcement) Act.
  2. 2 Whether there is a pending appeal or stay of execution in Tanzania that precludes registration and enforcement in Kenya.
  3. 3 Whether the ex parte application for registration was properly brought in light of the respondent's actions in Tanzania.

Ratio Decidendi

The court found that although the applicant claimed no appeal had been instituted in Tanzania, the respondent had filed a Notice of Appeal and obtained an interim stay of execution from the Tanzanian Court of Appeal. The court held that the existence of a Notice of Appeal and an operative stay order meant that the judgment was not presently enforceable in Tanzania. Under Section 6(2)(b) of the Foreign Judgments (Reciprocal Enforcement) Act, a foreign judgment cannot be registered in Kenya if it cannot be enforced by execution in the country of the original court. The court further noted that the stay order by Mroso, JA, specifically prohibited the applicant from proceeding with...

Court Disposition

application dismissed with costs to the respondent

Orders

  • The applicant's application to register the Tanzanian judgment is dismissed.
  • The applicant shall pay the costs of the application to the respondent.